A prospect of staying? Differentiated access to integration for asylum seekers in Germany

ABSTRACT

This paper investigates the normative permissibility of differential inclusion policies, taking Germany as a case study. In the face of mounting asylum applications, Germany introduced new administrative rules differentiating access to integration for asylum seekers. The paper normatively examines whether this practice is consistent with two conventional liberal concepts: special obligations grounding the moral commitments of the liberal state towards its own citizens and the principle of legal certainty grounding its moral commitments towards everyone under its jurisdiction, including asylum seekers. Combining these two usually separately employed perspectives, it argues that while differential inclusion is in principle consistent with these liberal principles, the crude criterion of the country of origin does not comply with both perspectives. The paper contributes to the debate on the ethics of immigration by scrutinizing this real-world instrument of differential inclusion from a political philosophy perspective.

KEYWORDS:

• Asylum seekers
• integration
• liberalism
• special obligations
• legal certainty
• Germany

Acknowledgements

Earlier versions of this article were presented at the KOSMOS-Workshop at HU Berlin in 2016, the IMISCOE Spring Conference at Middlesex University London in 2017 and at the BAGSS Joint Doctoral Workshop at the University of Trento in 2017. I would like to thank all participants and colleagues who have provided valuable comments on the draft, especially Stephan Simon, Holger Kolb, Tobias Eule and Marc Helbling, as well as the anonymous reviewers.

Disclosure statement

No potential conflict of interest was reported by the author.

ORCID

Caroline Schultz http://orcid.org/0000-0001-8278-7473

Notes

1. Already from November 2014 onwards, the German government had liberalized the regulations of labour market access for asylum seekers (cf. e.g. Thränhardt 2015).

2. For the purpose of this paper, a “liberal state” is understood to be a constitutional state built on the core principles of liberty and equality (cf. Hampshire 2013).

3. In the tradition of the debate on distributive justice, I am not concerned with the state’s obligation to provide for basic material needs and basic human rights (concept of minimalist justice), but with the rules the state sets that regulate access to socio-economic integration and upward social mobility (concept of maximalist justice) (Miller 2009).

4. As signatory to the Geneva Convention the state also commits to the principle of non-refoulement, which could be taken as consent to enter into a relationship with the individual asylum seeker.

5. Integration courses were introduced with the immigration law in 2005 and are primarily language courses, but also include an “orientation course” on German history, culture and the legal system.

6. The phrase “regular and long-lasting stay to be expected” is also used in § 421 of the Third Book of the Social Security Code about the support of language courses (§ 421 Abs. 1 S. 1 SGB III) (Lehner 2016) and it also figures in § 132 of the Third Book of the Social Security Code on the promotion of vocational training of foreigners.

7. It is assumed, however, that the specific categorization has been coordinated within the federal government; see e.g. an e-mail by the Federal Ministry of Labour and Social Affairs (BMAS): http://biaj.de/images/stories/2015-12-07_bmas-schreiben-421-sgb3-anlage.pdf, last accessed 14.06.2018.

8. The recognition rate is calculated as the sum of asylum recognitions (Basic Law Art. 16a), refugee recognitions (Geneva Convention), subsidiary protection statuses and determinations of a deportation ban, relative to the total number of decisions in a given time period (publication no. 18/12623 of the German Parliament).

9. https://www.bamf.de/SharedDocs/FAQ/DE/IntegrationskurseAsylbewerber/001-bleibeperspektive.html, last accessed 30.07.2018.

10. The aim of speeding up asylum processes has been reached to some extent at least regarding new applications, but it is debated whether this came at the cost of decreasing quality of decisions. The case backlog has not disappeared with faster processing, but shifted to the courts (publication of the German Parliament no. 19/3148).

11. This principle even holds in the EU, which has still not advanced to become a social union.

12. Ellermann (2014) employs the principle of legal certainty to ground the right to stay of undocumented immigrants.

13. In calling the status-based approach the “conventional” one, it shall not be concealed that elements of territorial-based rights (in addition to status-based ones) do play a role in many liberal democratic countries (cf. Bosniak 2007, 393).

14. Although there might be other legitimate reasons for providing these services even in those circumstances (in line with the special obligations argument): returnees might use newly obtained skills in their country of origin, thereby fostering development and (i.a. economic) transnational links.

15. Arguably, this “unfortunate” situation stems from the somewhat artificial separation between asylum and non-asylum migration law.

16. For insights into the historical evolution and critical analyses of current practices of the “safe country of origin” concept, cf. e.g. Engelmann (2014).

17. Afghans were never included into the “good prospect of staying” category, although they were likely to stay in Germany even in case of a negative asylum decision, as they were subject to a deportation stop unless classified as a criminal or potential threat. This was effective from December 2016, but was heavily debated again in June 2018 (see https://www.zeit.de/politik/deutschland/2018-06/asyllagebericht-abschiebestopp-afghanistan-aufhebung-angela-merkel, last accessed 22.06.2018). The BMAS decided to open labour market integration programmes for Afghan asylum seekers for the second half of 2017 (see http://ggua.de/fileadmin/downloads/ausbildungsfoerderung/RD-Weisung_Afghanistan.pdf, last accessed 21.06.2018).

18. For a discussion of the right to stay, see Carens (2010) and Ellermann (2014).

19. From the said normative perspective, a prospect of staying instrument that includes not only protection, but also deportation rates would be easier to justify – however, politically certainly unfeasible.

20. This is increasingly recognized in German law, see e.g. §60a Abs. 6 AufenthG, §1a Abs. 3 AsylbLG.

21. One could read e.g. the EU Reception Conditions Directive in such a way. For instance, Article 15 stipulated that access to the labour market has to be granted to an asylum seeker no later than nine months after the application (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0033&from=EN, last accessed 15.02.2019).

22. In case of non-cooperation on the part of the asylum seeker, these rights could be revoked.